As the Senate geared up last week for Elena Kagan’s confirmation hearings which began yesterday, the American Bar Association’s controversial Standing Committee on the Federal Judiciary unanimously (with one abstention) rated Kagan “well qualified” to serve on the Supreme Court, its highest rating (the other two ratings are “qualified” and “not qualified”). This comes as no surprise for those who follow the ABA’s supposedly “nonpartisan” ratings of judicial nominees; it seems that once again the ABA is slyly using its same old rating tricks—and jeopardizing its credibility—as it has many times before.
The ABA states that a Supreme Court nominee, in order to achieve its top rating, must “possess exceptional professional qualifications” and “be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament.” The nominee must also meet the same criteria the ABA demands for nominees to the lower courts, which, among other things, includes having “at least twelve years’ experience in the practice of law.”
But Kagan, according to her own responses to the Senate Judiciary Committee’s questionnaire, spent only two years in the actual practice of law (1989-1991), when she was a junior lawyer at a Washington, D.C. law firm. Even if one counts Kagan’s time as an associate counsel to President Clinton (1995-1996) and a special counsel to the Senate Judiciary Committee (Summer of 1993), she falls well-short of the ABA’s “twelve years’ experience in the practice of law.” Kagan’s being a law professor or a law school dean does not by itself constitute the practice of law; in fact, one does not have to be admitted into a state bar to serve as a law professor or dean. Kagan’s work as a political staffer is also not considered practicing law. Kagan’s actual law experience appears to be the typical junior lawyer’s work: doing discovery, drafting documents, and arguing motions. Kagan states that she never tried a case to verdict or judgment nor did a pro bono case. Furthermore, Kagan was not even a member of the Supreme Court bar until the time of her nomination to be U.S. Solicitor General.
Yet the ABA rates Kagan “well qualified” despite the fact that she falls short of the ABA’s own criteria. The ABA’s apparent hypocrisy is magnified by the fact that the ABA once rated now-distinguished judges such as Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson III as merely “qualified,” and some committee members deemed them “not qualified.” Many more such examples exist, but the ABA’s treatment of Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals is particularly egregious. The ABA twice-rated Judge Kavanaugh as “well qualified,” but then switched its rating to “qualified.” The ABA testified that, among other things, it was concerned about the fact that Judge Kavanaugh had “never tried a case to verdict or judgment,” a factor which apparently does not now concern the ABA regarding Kagan. Similar to Kagan, Kavanaugh clerked in two federal appellate circuits and then at the Supreme Court. Unlike Kagan, he had served for many years as an associate White House counsel as well as an independent counsel prosecutor, and was a partner at an international law firm. Moreover, Judge Kavanaugh actually did pro bono cases, such as representing the Adat Shalom congregation in Maryland and six-year old Elian Gonzalez. The ABA also expressed concern whether Judge Kavanaugh had the “ability to be balanced and fair should he assume a federal judgeship” because he had served as a White House staffer for President George W. Bush. But the ABA has not expressed any such concerns regarding Kagan despite her working as a political staffer to President Clinton, Senate Judiciary Committee Democrats (particularly Joe Biden), and former presidential candidate Mike Dukakis.
While the ABA has rated Republican judicial nominees as “well qualified,” sometimes unanimously, it should recognize that, in general, it takes liberal positions on controversial legal issues and treats Democrat judicial nominees better than Republican ones, as even the very liberal New York Times admitted. Academic studies confirm the ABA’s liberal bias. One of the major problems with the ABA’s rating system is the way it defines “judicial temperament,” for which the ABA uses, in part, “compassion,” “open-mindedness,” and “equal justice under the law.” It doesn’t take a legal genius to realize that such subjective criteria mean different things to different people, and that the liberal ABA would interpret and use them to favor liberal nominees and/or disfavor non-liberal ones.
An objective observer could reasonably conclude that the ABA applies its judicial nominee rating system inconsistently or perhaps even unfairly. The ABA should take the opportunity in this week’s Senate testimony to explain to the American people why it unanimously rated Kagan “well qualified” when she does not meet its own criteria, especially when it did not give the same rating to previous nominees such as Posner, Easterbrook, Wilkinson, and Kavanaugh. Now that would be a trick we’d all appreciate seeing.
Mia Reini is a policy specialist in Notre Dame, Indiana and an attorney licensed to practice in New York, Massachusetts and Washington, D.C. John Shu is an attorney who clerked in the U.S. Court of Appeals for the 11th Circuit and served both President George H.W. Bush and President George W. Bush. All opinions expressed are their own.